Judge: Immigrants have right to representation

Dec. 23, 2010

Updated Aug. 21, 2013 1:17 p.m.

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Mother Maria Franco embraces her son Jose Antonio Franco Gonzalez, a mentally disabled man, as his father Francisco Franco looks on after his release from Immigration and Customs Enforcement detention for five years after a federal law suit was filed on his behalf in Santa Ana, Wednesday, March 31. KEN STEINHARDT, THE ORANGE COUNTY REGISTER

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Francisco Franco, father of Jose Antonio Franco Gonzalez, a mentally disabled man, quietly sheds a tear as he listens in as Maria Franco, Jose's mother, talks with the media after his son's release from Immigration and Customs Enforcement detention in Santa Ana, Wednesday, March 31. KEN STEINHARDT, THE ORANGE COUNTY REGISTER

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Jose Antonio Franco Gonzalez, a mentally disabled man, answers questions of the media after his release from Immigration and Customs Enforcement detention for five years after a federal law suit was filed on his behalf in Santa Ana, Wednesday, March 31. KEN STEINHARDT, THE ORANGE COUNTY REGISTER

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Francisco Franco, father of Jose Antonio Franco Gonzalez, a mentally disabled man, holds his son's personal belongings as his family answer the media's questions upon his son's release from a five-year Immigration and Customs Enforcement detention in Santa Ana, Wednesday, March 31. KEN STEINHARDT, THE ORANGE COUNTY REGISTER

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While posing for a celebratory photo in Santa Ana, Mother Maria Franco gazes upon her son Jose Antonio Franco Gonzalez, center, with their attorney Talia Inlender, right, and father Francisco Franco after Jose's release from a five-year Immigration and Customs Enforcement stay in detention, Wednesday, March 31. KEN STEINHARDT, THE ORANGE COUNTY REGISTER

Mother Maria Franco embraces her son Jose Antonio Franco Gonzalez, a mentally disabled man, as his father Francisco Franco looks on after his release from Immigration and Customs Enforcement detention for five years after a federal law suit was filed on his behalf in Santa Ana, Wednesday, March 31. KEN STEINHARDT, THE ORANGE COUNTY REGISTER

A U.S. District Court judge ruled that federal officials must provide representation for two men with severe disabilities while they fight their deportation cases, an American Civil Liberties Union statement released Thursday said.

Wednesday's ruling is a good sign for ACLU of Southern California officials who said they ultimately hope to gain representation for all detainees with mental disabilities in the state, including an Orange County man who was the impetus for the first lawsuit the civil-rights organization launched against the federal government earlier this year.

"Given that this litigation is ongoing, ICE doesn't feel it would be appropriate to speculate about the impact of this week's decision," ICE spokeswoman Virginia Kice said in a written statement.

U.S. District Judge Dolly Gee's decision on two specific cases marks one of the first times in which a federal court has required the government to provide representation for an individual in immigration proceedings, the ACLU statement said.

Unlike criminal courts where the federal government appoints a defense attorney, immigration courts are not required to do so.

The ACLU argued that people with serious mental disabilities cannot get a fair hearing without representation in immigration court.

"What we've said is that can't be the rule for people with serious mental disabilities," said Ahilan Arulanantham, an attorney with the ACLU of Southern California.

The case first came to light when the ACLU filed a suit representing Jose Antonio Franco, a 30-year-old Costa Mesa man who functions at the mental level of a child and cannot tell time or remember his birthday, and another detainee.

Both men with serious mental disabilities spent years in immigration custody without legal assistance or a chance to challenge their detention, according to court documents filed against the federal government.

Aside from Franco, the suit eventually included several other detainees who face deportation hearings, becoming a class-action lawsuit last month, according to the ACLU statement. Some of the detainees are in the country illegally while others are legal residents or refugees.

The lawsuit alleges federal officials have deprived the detainees of their Constitutional rights to due process, violating federal anti-discrimination laws that aim to protect people with disabilities.

In November, the ACLU asked a federal judge to appoint representation for all the named plaintiffs in the case who are suffering from serious mental disabilities.

Wednesday's ruling pertained to two specific cases that are part of the broader class-action lawsuit, according to the ACLU.

Gee ruled that federal officials are required to provide representation for two detained immigrants, Ever Martinez-Rivas and Aleksandr Petrovich Khukhryanskiy.

Gee's ruling now puts the onus on the federal government to either pay for or find pro-bono representation for these two cases.

While the court doesn't require the representative to be an attorney, it does set some basic criteria that he or she must meet.

Both of the men's cases were taken up first because they faced imminent deportation, according to the ACLU.

The ruling was temporarily filed under seal to protect private medical information. The federal government and the ACLU must agree to a redacted version of the ruling before it becomes available to the public.

Here are some details provided by the ACLU:

•Martinez-Rivas is a 31-year-old lawful permanent resident who suffers from schizophrenia. He was detained about a year ago after he pleaded guilty to a felony charge for using force to inflict bodily injury. Fourteen months later, he faced deportation. A psychiatrist found Martinez incompetent to represent himself in removal proceedings, according to the ACLU, and an immigration judge terminated his case after finding that he was unrepresented and mentally incompetent.

•Khukhryanskiy is a Ukrainian refugee who has been diagnosed with paranoid schizophrenia, according to the ACLU. The 45-year-old, who suffers from auditory hallucinations, was put into ICE custody in April after he was convicted for attempted assault and robbery five years ago. His case is on appeal after an immigration judge ordered his removal.

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